Appellants factum - Woodward & Company

59• “By the time Alfred Waddington began the construction of his failed overlandroute to the gold fields [1863], the historical record leads to but oneconclusion: the Homalco people living at Bute Inlet feared the Tsilhqot’in andwere reluctant to venture into Tsilhqot’in territory”. 324• To be safe in Tsilhqot’in territory, “one had to be accompanied by Tsilhqot’in,paying what in effect was a ‘toll’ to enter and ‘rent’ if you wanted to stay andsettle down”; 325 in fact, the historical record furnishes numerous exampleswhere non-Tsilhqot’in Aboriginal guides refused to enter Tsilhqot’in territory,expressing fear of Tsilhqot’in people. 326194. These findings demonstrate that Tsilhqot’in people not only occupied the ClaimArea at sovereignty, but also exercised the “exclusive right to control” 327 these landsthat is the hallmark of title at common law. In other words, the facts as found by theTrial Judge establish that the Tsilhqot’in people, as “the alleged possessor [have] beendealing with the land in question as an occupying owner might have been expected todeal with it and that no-one else has done so." 328195. Had the Trial Judge properly directed himself on the law, and assessedoccupation and exclusivity together, he could only have concluded that Tsilhqot’inoccupation of the Claim Area at sovereignty, coupled with the exclusive physical controlexercised over the Claim Area, demonstrated exclusive possession sufficient toestablish Aboriginal title. The Appellant respectfully submits that this Honourable Courtshould apply the correct law to the facts as found by the Trial Judge and declareAboriginal title to the Claim Area in its entirety.324 Trial Decision, para. 182.325 Trial Decision, para. 917, quoting from Exhibit 0391, Expert Report of Hamar Foster. See also paras. 919, 938-40.326 Trial Decision, para. 921.327 R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43, para. 77 [underscore added]. See also para. 64.328 J.A. Pye (Oxford) Ltd. v. Graham, [2002] 3 W.L.R. 221 (H.L.), para. 41, quoting with express approval fromPowell’s case at pp 470-471 [underscore added]. See also: Carol Rose, “Possession as the Origin of Property”(1985) 52 U. of. Chic. L. R. 73 at 77-82; William Blackstone, Commentaries on the Laws of England, (London:Cavendish Publishing Ltd., 2001), vol. 2, pp. 9, 258.